OFFICE OF THE ASSISTANT SECRETARY

may constitute both sexual harassment under Title IX and criminal activity.
Police investigations may be useful for fact-gathering; but because the standards
for criminal investigations are different, police investigations or reports
are not determinative of whether sexual harassment or violence violates Title
IX. Conduct may constitute unlawful sexual harassment under Title IX even if
the police do not have sufficient evidence of a criminal violation. In addition,
a criminal investigation into allegations of sexual violence does not relieve
the school of its duty under Title IX to resolve complaints promptly and equitably.

A school should notify a complainant of the right to file a criminal complaint,
and should not dissuade a victim from doing so either during or after the school’s
internal Title IX investigation. For instance, if a complainant wants to file
a police report, the school should not tell the complainant that it is working
toward a solution and instruct, or ask, the complainant to wait to file the
report.

Schools should not wait for the conclusion of a criminal investigation or
criminal proceeding to begin their own Title IX investigation and, if needed,
must take immediate steps to protect the student in the educational setting.
For example, a school should not delay conducting its own investigation or
taking steps to protect the complainant because it wants to see whether the
alleged perpetrator will be found guilty of a crime. Any agreement or Memorandum
of Understanding (MOU) with a local police department must allow the school
to meet its Title IX obligation to resolve complaints promptly and equitably.
Although a school may need to delay temporarily the fact-finding portion of
a Title IX investigation while the police are gathering evidence, once notified
that the police department has completed its gathering of evidence (not the
ultimate outcome of the investigation or the filing of any charges), the school must promptly resume and complete its fact-finding for the Title IX investigation.25 Moreover,
nothing in an MOU or the criminal investigation itself should prevent a school
from notifying complainants of their Title IX rights and the school’s grievance
procedures, or from taking interim steps to ensure the safety and well-being
of the complainant and the school community while the law enforcement agency’s
fact-gathering is in progress. OCR also recommends that a school’s MOU include
clear policies on when a school will refer a matter to local law enforcement.

As noted above, the Title IX regulation requires schools to provide equitable
grievance procedures. As part of these procedures, schools generally conduct
investigations and hearings to determine whether sexual harassment or violence
occurred. In addressing complaints filed with OCR under Title IX, OCR reviews
a school’s procedures to determine whether the school is using a preponderance
of the evidence standard to evaluate complaints. The Supreme Court has applied
a preponderance of the evidence standard in civil litigation involving discrimination
under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et
seq. Like Title IX,

25 In
one recent OCR sexual violence case, the prosecutor’s office informed OCR that
the police department’s evidence gathering stage typically takes three to ten
calendar days, although the delay in the school’s investigation may be longer
in certain instances.